U.S. Supreme Court Explains What Actions
May Constitute Workplace Retaliation
Attorney Linda A. Harfst
Cullen Weston Pines & Bach LLP

On June 22, 2006, the U.S. Supreme Court announced its decision in Burlington Northern & Santa Fe Railway v. White, Docket No. 05-529. The case involved a retaliation claim brought by a female railway employee who worked in the very non-traditional position of a track laborer. The court's decision answers the question of what kinds of actions an employer can take against an employee who has opposed a discriminatory practice.

Sheila White ("White"), the plaintiff, began working for the railroad in Memphis, Tennessee. As a track laborer, she performed a number of physically difficult and dirty jobs, including cutting brush, clearing litter, and replacing track components. By anyone's measure, it was filthy, heavy duty work. White had other prior work experience, however, as a fork lift operator. When a fork lift assignment opened, White was given the assignment. The railroad paid White the same wage for driving a fork lift as it had paid her for the track laborer work; arguably, driving the fork lift was a part of the same position, since White's job title never changed.

Nevertheless, White's co-workers, all men, resented the fact that she was assigned cleaner, more desirable work than they were assigned. After her fork lift assignment began, the co-workers began subjecting her to a steady stream of harassing comments, insults, and punitive behavior. Her supervisor announced that a woman shouldn't even be working there, much less running the fork lift.

White filed an internal complaint, and the company's investigation revealed that her complaints of bad treatment were substantiated. Her supervisor, the individual who made the sexist comments, was disciplined. However, during the sexual harassment investigation, complaints from co-workers about White's work performance surfaced. The men complaining thought White should not have been chosen for the fork lift assignment. Therefore, the railroad reconsidered and removed White, replacing her with a more senior male co-worker who had never asked for the fork lift position.

White returned to the track laborer duties she had been doing. She also filed a charge with the U.S. Equal Employment Opportunities Commission, alleging both gender discrimination and retaliation. Just a few days after she filed this charge, the railroad suspended her without pay for 37 days for an alleged incident of insubordination. Next, White filed a union grievance under her collective bargaining agreement. A hearing examiner heard the grievance, overturned the suspension, and awarded her full back pay.

White's gender discrimination and retaliation case eventually went to federal court and was tried before a jury. The jury awarded her a verdict on the retaliation claim, but not on the gender discrimination claim.
The railroad appealed. It claimed that White never suffered any adverse action, not even a loss in pay, since the unpaid suspension had by this time been reimbursed to her through the grievance hearing. The employer also claimed that the change in job assignments was not enough to constitute retaliation in the legal sense, since White's job title and wage remained the same throughout.

A quick review of what constitutes retaliation is helpful at this point. There are three elements: (1) the employee opposed an unlawful employment action or practice. This might occur by complaining about something that happened to oneself, or to another person; or, it may occur if a worker is a witness to discrimination and reports it or testifies to it; (2) the employee must suffer an adverse action by the employer; and (3) the employee's complaint or other opposition to the unlawful employment practice was the cause of the employer's adverse action. The elements of a retaliation claim under state and federal employment law are very similar. See Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. Appeals 1989) for a description of the elements under the Wisconsin Fair Employment Act, and Fine v. Ryan Int’l Airlines, 305 F.3d 746 (7th Cir. 2002) for a description of the elements of retaliation as the federal courts in the Seventh Circuit have articulated them. Also see, Rochon v. Gonzalez, 438 F.3d 1211 (CA, CDC 2006), and Washington v. Illinois Dept. of Revenue, 420 F.3d 658 (7th Cir. 2005) for a description of the second element of retaliation under the Civil Rights Act of 1964 as interpreted in the Seventh Circuit.

In White's case, the U.S. Supreme Court focused upon the second element. It was clear that White had engaged in protected activity by complaining internally within the company, and then filing a U.S. EEOC charge. Even her union grievance might have qualified, since it too was protected activity, and, in this instance, arose out of some of the same facts. There really wasn't any doubt that White had opposed a potentially discriminatory employment practice, satisfying the first element.

However, the second element was murkier, and it was here that the employer focused its defense. In essence, it claimed that nothing it did to White was bad enough that she could maintain a claim of retaliation. After all, it found that her harassment claim was meritorious, and it disciplined the supervisor who made the most egregious comments. Burlington Northern claimed "no harm-no foul" for its actions in using "facts" it gleaned from the sexual harassment investigation to remove White from the fork lift driver position, then replacing her with a male worker who had not even requested the job.

White didn't lose anything by being returned to the physically tougher and dirtier track laborer duties, Burlington Northern said. After all, it argued, she didn't lose any pay, and her job title did not change.

At this point, the Court had the option of choosing among the views of several federal circuits. Some circuits maintained that only a limited group of actions by an employer could create an employment detriment so serious that it would result in a finding of legal retaliation. These might be such actions as failure to hire or promote, failure to grant a needed leave, terminating the person, or making a negative decision on compensation as a result of the employee's protected action. The Sixth Circuit, which covered the area of Tennessee where White worked, required that the employment decision which affected the employee be "materially adverse," and it used this standard.

Some other circuits, however, including the Seventh Circuit, in which Wisconsin is located, had a broader test. This test required that the harm the employer inflicted be material (i.e., that the harm be significant), and not trivial or insignificant. The Seventh Circuit's standard also required that employers and the courts use an objective standard to determine whether the consequence would be one which would deter a reasonable employee from complaining to the employer itself, to an administrative agency, or to the courts, or from supporting another worker in making such a charge. An action that would be likely to deter the average employee from reporting discrimination would be prohibited. Using that standard, for instance, the Seventh Circuit previously found that eliminating a flex schedule which allowed an employee to care for her son with Down’s syndrome was a sufficient harm to constitute retaliation for the employee’s prior race discrimination claim. Washington at 662.

The high court chose the standard which is more protective of the employee, reasoning that it would not want to choose a standard that would prevent complaints of discrimination from emerging. In adopting the Seventh Circuit's formulation, and ruling for White, the Supreme Court recognized that the significance of any given act of retaliation might depend upon the circumstances.

What is likely to be the outcome of the Supreme Court's decision? One result is that it is clear now more than ever, that even if it may be difficult to prove the underlying discrimination claim, it may be possible to prove a retaliation claim if the employer took an adverse employment action against an employee after the person made a protected complaint. Secondly, any repercussions which would have deterred the employee from complaining may be serious enough to create liability in a retaliation claim, and the court will look case-by-case at the circumstances. Finally, a retaliation claim can cover a wider range of employer actions than is likely in a gender or race discrimination claim. All of these factors may make it somewhat easier to vindicate employee rights in the work place.